STATE OF NEW JERSEY v. RASHAUN FERGUSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RASHAUN FERGUSON, a/k/a

ZBOMB CARTER AND RASHAUN

FELGUSON,

Defendant-Appellant.

______________________________

November 15, 2013

Submitted November 7, 2013 Decided

Before Judges Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-10-0720.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a June 12, 2012 order denying his petition for post-conviction relief (PCR). Defendant contends that he received ineffective assistance of plea counsel. We affirm.

Defendant pled guilty to first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1). Defendant appeared at the plea hearing and started to give a factual basis for shooting the victim, but the assistant prosecutor interrupted the proceeding indicating that she was unwilling to proceed unless defendant testified truthfully. The court permitted plea counsel time to communicate with defendant and then defendant resumed his testimony.

Q: And on that evening[,] can you tell the [c]ourt and the assistant prosecutor what happened?

A: I let [the victim] watch my house till I [came] back from New York. I went and picked [up] my cousin . . . who just came home from [being] incarcerat[ed]. And on the way back from New York[,] we stopped at a bar and we started drinking.

Then I came home and the victim . . . was on my porch with people [that] I didn't like at the time. And me and [the victim] had an argument . . . . [T]he people left . . . and [the victim and I] went in[to] the house.

. . . .

Q: And what happened?

A: We continued drinking, listening to music. And at the time[,] I was selling drugs, . . . and the crack heads kept knocking at my door.

. . . .

And I told [the crack heads] "Stop knocking on my door, I'm not doing anything." But they [were] persistent and kept knocking.

So I went and got my gun, not thinking about . . . who was in my house with me, and I fired a shot at them, scared them, and [the victim] got hit [with a bullet].

. . . .

Q: And you knew that if you discharged the weapon and it hit someone, there was a probability that death would occur[?]

A: Yes.

The plea judge accepted this factual basis and concluded that defendant pled guilty knowingly and voluntarily.

In accordance with the plea agreement, the judge sentenced defendant to fifteen years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appealed and we affirmed the sentence on our excessive sentencing calendar. State v. Ferguson, No. A-5464-08 (App. Div. June 28, 2010). The Supreme Court denied certification. State v. Ferguson, 205 N.J. 98 (2010).

Defendant filed a petition for PCR contending primarily that his plea counsel was ineffective by failing to (1) negotiate a plea agreement with the State for reckless manslaughter; (2) object to the factual basis; and (3) argue mitigating factors at sentencing. Judge Thomas W. Sumners, Jr., conducted oral argument and issued a seventeen-page written decision. Judge Sumners stated that

the factual basis elicited by the State does support a charge of [a]ggravated [m]anslaughter in the first degree.

. . . .

[Defendant] now argues that he expected his lawyer to argue that the circumstances for the offense would support a lesser charge, therefore a more lenient sentence. . . . A defendant's counsel is not expected to argue for different plea terms in the middle of the plea proceedings. [Defendant] is not claiming that when he spoke to his attorney, both prior [to] and during the plea proceeding, that he told his lawyer that he was not comfortable with accepting the terms of the plea bargain[,] and therefore, wanted his lawyer to stop the proceedings and negotiate a more favorable plea deal. There is no factual [basis] that [defendant] . . . was forced or coerced [in]to accept[ing] the plea . . . . Similarly, the State's threat to rescind the plea offer was not a coercive move which prejudiced [defendant].

The PCR judge considered and rejected the remaining contentions raised by defendant and then denied defendant's petition. This appeal followed.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE HIS GUILTY PLEA LACKED A SUFFICIENT FACTUAL BASIS TO SUPPORT THE CHARGE OF AGGRAVATED MANSLAUGHTER.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF SINCE TRIAL COUNSEL FAILED TO ADEQUATELY REPRESENT THE DEFENDANT'S INTERESTS AT SENTENCING BY FAILING TO DEMONSTRATE THE APPLICABILITY OF VARIOUS MITIGATING FACTORS, AND BY FAILING TO DEMONSTRATE THE INAPPLICABILITY OF TWO OF THE THREE AGGRAVATING FACTORS FOUND BY THE TRIAL COURT TO EXIST.

POINT III

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST CONVICTION RELIEF, IN PART, UPON PROCEDURAL GROUNDS PURSUANT TO Rule 3:22-5.

We find no merit to these contentions, Rule 2:11-3(e)(2), and therefore affirm substantially for the reasons stated by Judge Sumners in his comprehensive opinion. Suffice it to say, in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, l 04 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). The United States Supreme Court has extended these principles to a criminal defense attorney's representation of an accused in connection with a plea negotiation. Lafler v. Cooper, 566 U.S. ___, ___, 132 S. Ct. 1376, 1384-85, 182 L. Ed. 2d 398, 406-07 (2012); Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399, 1407-08, 182 L. Ed. 2d 379, 390 (2012). A defendant must demonstrate with "reasonable probability" that the result would have been different had he received proper advice from his trial attorney. Lafler, supra, 566 U.S. at ___, 132 S. Ct. at 1384, 182 L. Ed. 2d at 406-07 (citing Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or the prejudice prong of the Strickland test.